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9.10 Particular Rights—First Amendment—“Citizen” Plaintiff

9.10 PARTICULAR RIGHTS—FIRST AMENDMENT—"CITIZEN" PLAINTIFF

As previously explained, the plaintiff has the burden to prove that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].

Under the First Amendment, a citizen has the right [to free expression] [to petition the government] [to access the courts] [other]. In order to prove the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

1. the plaintiff engaged in [speech] [other specified conduct] protected under the First Amendment;

[I instruct you that plaintiff’s [speech in this case about [specify]] [specify conduct] was protected under the First Amendment and, therefore, the first element requires no proof.]

A substantial or motivating factor is a significant factor.

Comment

Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.2–9.7, and when the plaintiff is a private citizen. Use Instruction 9.9 (Particular Rights—First Amendment—Public Employees—Speech) when the plaintiff is a public employee. Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law. See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009).

Under the First Amendment to the United States Constitution, a citizen has the right to be free from governmental action taken to retaliate against the citizen’s exercise of First Amendment rights or to deter the citizen from exercising those rights in the future. Sloman v. Tadlock, 21 F.3d 1462, 1469–70 (9th Cir.1994). "Although officials may constitutionally impose time, place, and manner restrictions on political expression carried out on sidewalks and median strips, they may not ‘discriminate in the regulation of expression on the basis of content of that expression.’ . . .’ State action designed to retaliate against and chill political expression strikes at the very heart of the First Amendment.’ " Id. (citations omitted).

In determining whether the First Amendment protects student speech in a public school, it is error to use the "public concern" standard applicable to actions brought by governmental employees. Pinard v. Clatskanie School District 6J, 467 F.3d 755, 759 (9th Cir.2006). Instead, the proper standard to apply to student speech is set forth in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969). Pinard at 759. See also Morse v. Frederick, 127 S. Ct. 2618 (2007).